Stealing from thieves

[Bob Costa]

I was at a local fair this weekend, and there were a couple of different Peruvian flute musicians there selling a variety of music CD's. It was promoted as "contemporary and native-American tunes". Now there is a copyright notice (or "all rights reserved" on the later ones) on the CD, but I don't see any BMI/ASCAP notices, or any mention of "published with permission of...". And about 50% of the music on every CD is clearly music that would require permission to publish, including titles like the music from Elton John/Lion King, the Beatles, and other top 40 hits from previous years. So these guys are basically copyright thieves AFAIK, and counting on their "craft fair" status, along with the probability that they are illegal aliens, to keep from getting caught. FWIW, I would estimate one booth sold $10k to $40k of CDs this weekend, based on how many were selling the two times I went by. Isn't it correct that they would have to include a "permission" or BMI/ASCAP notice if they were legal?

Now I would not be so bold as to use a Disney tune on a video project, but I am not sure how I feel about using some of this other music that I can't identify (and which may be "traditional native-American" music). It will make nice background for photo or video montages.

So I would like to hear some opinions of the ethical issues here. I know legally I would not have a leg to stand on if these guys caught me and cared to prosecute (both of which are extremely unlikely for reasons stated). I could probably get permission from them if I cared to, but don't know if it would be worth anything. They would probably tell me it was okay to use the Lion King song.

But the whole thing got me thinking about the ethics/morality of it, and I am not sure how I feel. So I am hoping for an interesting discussion, and thought it would be better here than in the business forum, especially since Spot hangs around here sometimes. Maybe he even knows these guys...

[Glenn Chan]

Couldn't the original copyright owner sue you? I don't see how this scenario is all that much different than using music from CDs you own, except you are paying someone to help you pirate the music. Owning a CD does not give you the rights to put it in your videos.

I think it's pretty clear cut here that you did not pay for the rights for the music, you do not own the rights, and that you can be sued for infringement.

I could be wrong though, as all this legal stuff can get confusing. I don't think this scenario is all that complicated though.

[Matt Gettemeier]

I'd say it depends on where the video is going. What's the distribution and are you making any money on it? Basically, if you're putting music into a video for your family or friends I wouldn't worry about it... but if you're doing weddings or any other form of video for profit then I'd look elsewhere.

As a matter of ethics I've never been much on the "what I'm doing isn't as bad as what THEY'RE doing" defense.

I've got a local news channel (5) which uses Crystal Method to punch up spots... and also for a few commercials. I wonder if they got permission? I know that sounds nuts to say they wouldn't have... but they use CM's more obscure songs... and only a fan of CM would know what they're hearing.

[Bob Costa]

I was thinking more of the "tradiitonal tunes" that are probably in the public domain, except for the performance itself. And as I said, I understand the legal, I am just curious if people here (hopefully including some performance artists) feel there is a karmic justice involved. Its not about getting caught.

[Marco Leavitt]

I don't think there's any karmic justice in what you're proposing.

[Matt Gettemeier]

I doubt it could affect those artists in any bad way. For an obscure band or musical group I think exposure is the number one necessity. If you gave proper credit at the end of your video I think you'd be doing the guys a favor... as far as kharma goes. Of course the final say on it would be up to the performers... you may be surprised and find that they'd fully endorse your usage of their performances.

I think the line is drawn somewhere beneath Gold record level... at least IMO... Artists under that are unknown, unheard, and probably just making an average living that could only be helped by more exposure.

Once a song and performance is known and heard by millions of fans any extra exposure is only negative... Have you heard the cell phone ads featuring Eric Clapton? They make me want to puke... and then at the INSTANT a Clapton song comes on I change channels 'cause I'm sick of the song and I'm reminded of a really stupid commercial... plus the song takes on some of the poor quality of the ad it's associated with...

How about the Led Zeppelin Cadillac ads? Laughably stupid with an obvious plea to middle-aged guys to pretend that a Cadillac is some rebellious choice (like in the days of their youth... pun) rather then a nice car that was at the top of their budget... but still 'aint no Mercedes, Lexus, or any of the other superior cars that are supposedly backing away from the Caddy's greatness. Robert Plant, what were you thinking?

So for me the kharmic relation to all of this is in what the artist would want and how your usage of their performance affects that artist.

[David Ennis]

Interesting discussion, John.

As a practical matter, US code makes it a civil offense to violate copyright at all, and escalates it to a criminal offense if you profit. It's unlikely anyone will be sued for the civil offense of using copyrighted music in a family video. There are virtually no damages for the injured party to recover in return for the trouble and expense of the suit. It's also unlikely that a wedding videographer will be prosecuted for profiting from using copyrighted music. However, the wedding videographer would be taking a chance, because his crime is against the state, so there are deep pockets to pay for the prosecution. So all would take is for an unhappy customer to drop a dime and talk to a D.A. who cared.

In terms of ethics, I can almost hear the character by the same name as yours in Atlas Shrugged by Ayn Rand distainfully asserting that a copyright or patent violator has no higher morality than a cutthroat.

I think it's more complicated than that. Murder is an intrinsic wrong--a violation of natural order. Or, for someone to take your merchandise by force or by stealth is intrinsically wrong. But using your idea, taking advantage of something abstract that you originated without taking anything away from you is not intrinsically wrong in my opinion--it is only a statutory violation of a code that was explicitly contrived by society to encourage creativity by providing economic incentive. That's a different kind of wrong--to me, a much lessor wrong.

However, if I support that code as a benefit to society and therefore to me (as I do) then I have a problem with my own integrity if I decide to pick and choose when I will adhere to it. Is there a penalty? I think so. I believe that whenever we trade off a little integrity for convenience or short term gratification, we lose a little bit of our capacity to enjoy life.

[Douglas Spotted Eagle]

<<<-- as far as kharma goes. Of course the final say on it would be up to the performers... >>>>

Not so, Matt. Only if the performer owns all of his/her publishing, which is fairly rare in any but the highest levels. Publishers have the right, even the responsibility to license songs wherever, whenever they can. This is why they are publishers. Some artists (like me), have specific rules about where a song can and cannot be published. My music (since signing with Virgin) cannot be used for adult video work....

Anyone can record anything they want, regardless of who wrote it. But...they have to pay mechanicals and performance royalties. Mechanicals are compulsory, there is no way around that particular demon.
This is quite common, the Peruvian bands that rip off famous musical works and record them, making profit. It irks me to no end that they can get a way with it and make huge money doing it. In Sweden last year, I ran into a band in Stockholm that told me they make nearly half a million USD a year between the 6 of them, from CD sales. Most of the music on their CD's is instrumental pop versions.

[John Sandel]

John, I think your title answers your question, which can be asked: "Do two wrongs make a right?" We've all known the answer to that one since we were toddlers.

[Tim Le]

<<<-- Originally posted by Matt Gettemeier :
I've got a local news channel (5) which uses Crystal Method to punch up spots... and also for a few commercials. I wonder if they got permission? I know that sounds nuts to say they wouldn't have... but they use CM's more obscure songs... and only a fan of CM would know what they're hearing. -->>>

I think I read somewhere that news organizations have a special exemption in the copyright laws. Like for example they don't need to obtain written clearances from people (to put you on TV) because the content is press. I thought this extends to copyrighted music too, but I'm not sure. If anyone knows for sure, please straighten me out.

[Patrick Jenkins]

Was the music a 1:1 reproduction? Like copies of the original tune? Or were they Peruvian musicians performing the songs which were then being sold? It wasn't clear from the original post.

If what was being sold is ultimately the original recording, that's definitely illegal - sadly typical of open air markets. If it was a flute performance (or some other reproduction - a coverband of peruvian flutists) of "Bennie & The Jets" that's fine to sell. You enter into an ethical/moral debate of course, but ultimately it's legal. You're also free to sell something that has the original "Bennie & The Jets" (not the Peruvian remix) playing in the background - as long as it was recorded originally in the scene (like at a ball park over the PA or something).

If ultimately you want to use something in a production that wasn't originally at the source you have to get permission of the performing artist - or whoever owns the original artists performance (w/ most modern music, that's the label). You wouldn't need to ask Elton John for permission to use the Peruvian flute recording of Bennie, but you would need to get permission from the Peruvians to use their work.

It all comes down to first broadcast/performances and who did them (or who owns them).

[Keith Loh]

That was my first thought when I read the initial post. Maybe it was just covers of the songs?

[Bob Costa]

Spot understands, but many of you do not seem to. As far asking the artists, I don't see what that does for me. They could say yes, fine to use it as I want. Then later on I find out that the song they gave me permission to sync is not even theirs. This seems like it would be the most likely scenario.

Patrick, I would indeed need to get Elton John's permission (his publisher actually) in the example case you mentioned.

I wasn't seriously thinkng of using it, but my gut still tells me if I did, it would be a fair karmic turn of the wheel. If they treat other musicians as though copyright law does not exist, then why should they be entitled to any protection form that law? Thanks to all who responded so far.

[Douglas Spotted Eagle]

<<<-- Originally posted by Patrick Jenkins :

If what was being sold is ultimately the original recording, that's definitely illegal - sadly typical of open air markets. If it was a flute performance (or some other reproduction - a coverband of peruvian flutists) of "Bennie & The Jets" that's fine to sell. You enter into an ethical/moral debate of course, but ultimately it's legal. You're also free to sell something that has the original "Bennie & The Jets" (not the Peruvian remix) playing in the background - as long as it was recorded originally in the scene (like at a ball park over the PA or something).

If ultimately you want to use something in a production that wasn't originally at the source you have to get permission of the performing artist - or whoever owns the original artists performance (w/ most modern music, that's the label). You wouldn't need to ask Elton John for permission to use the Peruvian flute recording of Bennie, but you would need to get permission from the Peruvians to use their work.

It all comes down to first broadcast/performances and who did them (or who owns them). -->>>

This thread actually needs to be moved to the business of business forum at this point, but for purposes of clarification, I want to make it clear that you are absolutely incorrect in this, Patrick. You absolutely, totally need Elton John's publisher's permission to use a derivative work in a video whether the Peruvians are paying compulsories or not. Sync licences are not the same as mechanical licenses are not the same as performance royalties, etc.

[John Sandel]

"If they treat other musicians as though copyright law does not exist, then why should they be entitled to any protection form that law?"

Well, for the same reason that you should be honest despite others' lies. If that doesn't appeal to you, then respect their protection for selfish reasons. When you protect other artists---or anyone else who enjoys a right---you also protect yourself.